Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

On September 26, 2011, the 9th U.S. Circuit Court of Appeals overturned summary judgment allowing a 59 year old employee’s claim of age discrimination to go to a jury, based largely on evidence that younger employees – even those over 40 years old – had been disciplined differently than she was. Christine Earl v. Nielsen Media Research, Inc., 9th Cir., No. 09-17477, Sept. 26, 2011. (You can listen to a recording of the Ninth Circuit argument on this case if you have the appropriate media player.)

For over twelve years, Christine Earl worked as a “recruiter” for Nielsen Media Research, recruiting households within specific demographics to participate in research regarding their television viewing habits. In 2005, when Earl was 57 years old, she received a verbal warning for violating the company’s gift policy, which prohibited recruiters from leaving gifts at unoccupied households. On early 2006, Earl again violated that policy, along with another that required recruiters to keep a company map with them while visiting targeted households. In February 2006, Earl was placed on a Developmental Improvement Plan (“DIP”). A DIP is an informal non-disciplinary tool used by Nielsen to inform an employee that his or her performance has fallen below company standards. A DIP differs from a performance Improvement Plan (“PIP”), a part of Nielsen’s disciplinary process during which an employee is informed that additional performance problems may result in further disciplinary action, up to and including termination. Earl had never received a PIP during her employment with Nielsen.

In October 2005, Earl made an error during the process of obtaining the consent of a household to participate in Nielsen research. The error, which consisted of writing down an incorrect address for the household, was unnoticed by Earl and her customer. However, when the Nielsen technician who was to install the company’s monitoring device realized the error (the incorrect household refused the installation), he was able to correct it. When Nielsen learned of Earl’s mistake, it fired her.

Earl brought a lawsuit against Nielsen, including a claim of age discrimination under the relevant California law. California courts look to federal decisions under the ADEA when interpreting that law, and use the familiar McDonnell-Douglas 3-part analysis. Under that analysis, an employee first must set forth a prima facie case of discrimination, a fairly straight-forward burden. The employer then must proffer a “legitimate business reason” for its actions. The final step in the analysis – and a critical one to an employee’s successful lawsuit – is that the employee must raise a triable issue for the jury that the employer’s proffered reason is simply a pretext for unlawful discrimination.

In Earl’s case, Nielsen filed a motion for summary judgment, claiming that Earl could not prove that her termination was a pretext for discrimination. While the lower court held that Earl could not create a question of fact for the jury on that issue, the Ninth Circuit disagreed, finding that Earl had produced evidence of pretext. That evidence, according to the Court, was that while Nielsen did not have a formal written policy that required a PIP before firing an employee, the procedure of doing so was viewed by the company as an integral step in the disciplinary process. In fact, less than a year prior to Earl’s termination, the company’s HR manager objected to the termination of a 42 year-old employee without first implementing a PIP because such action “would not be consistent with our procedure.” While the company argued that its written policy included language that allowed it to accelerate the disciplinary process at its discretion, the Ninth Circuit held that the company’s general reliance on the issuance of a PIP prior to termination is essence created an internal policy that was violated in Earl’s case. It reversed the lower court’s decision and remanded the case back for a trial on the issues.

The message of this case is an important one: consistency is the key to avoiding the perception that the basis of differing disciplinary actions is an employee’s protected characteristic. Here, applying a more “forgiving” policy to a 42 year old than to 59 year old Earl raised a triable issue of fact, regardless of the company’s formal policy, and will allow Earl to argue that she was terminated without a PIP solely because of her age.
 

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In gender discrimination cases under Title VII, a jury can award back pay and front pay, but also can award compensatory damages if it believes that an employee was harmed emotionally or psychologically by the alleged harassment or hostile work environment. The 1st U.S. Circuit Court of Appeals recently affirmed a $1.6 Million damages award against a Massachusetts hospital and a male physician, and in favor of a female neurosurgeon who claimed hostile work environment and retaliation under Title VII. Tuli v. Brigham & Women’s Hospital, 1st Circ., No. 09-1731, August 29, 2011.

Dr. Sagun Tuli, a female neurosurgeon, brought claims against her employer, Brigham & Women’s Hospital and her supervisor, Dr. Arthur Day, after a yearly review of her medical staff credentials resulted in a conditional reappointment. Tuli, who was hired into the hospital’s Department of Neurosurgery in 2002, acted as the department’s professionalism officer and representative to the hospital’s Quality Assurance and Risk Management (QARM) Committee, which required her to investigate and report on other doctors’ case complications. As QUARM representative, Tuli investigated three of Day’s cases, all three of which ultimately were reported to the state’s Board of Registration of Medicine. In addition, Tuli raised concerns to the hospital’s chief medical officer that Day was inappropriate and demeaning to women, including Tuli.

In 2007, Tuli’s medical staff credentials were due for review by the hospital’s credentialing committee. The results of that review would determine whether Tuli would continue to have “privileges” at Brigham & Women’s – that is, whether she would be allowed to practice medicine at the hospital. Day presented Tuli’s case to the committee in unflattering terms, including a suggestion that she would benefit from anger management training. The committee then conditioned Tuli’s reappointment on obtaining an evaluation by an outside agency (“Physician Health Services”) and on agreeing to comply with that agency’s recommendations.

Tuli subsequently filed a lawsuit asking for a preliminary injunction to prevent the loss of her privileges. She also alleged gender discrimination, claiming both disparate treatment and hostile work environment, based upon Day’s behavior toward her. The district court granted the preliminary injunction. Shortly after that, a jury decided Tuli’s claims, awarding $1 Million in compensatory damages against the hospital on Tuli’s hostile environment claim, $600,000 against the hospital in compensatory damages on her retaliation claim, and $20,000 against Day personally for economic harm on a “tortuous interference with business” claim. At that point, the lower court entered a permanent injunction, keeping the hospital from withdrawing Tuli’s privileges at the hospital. The hospital appealed on all counts.

On appeal, the First Circuit upheld the jury’s verdict, as well as the permanent injunction. It found that the evidence showed that Day frequently had questioned Tuli’s authority, calling her a “little girl,” and asking whether she really could do a “big operation.” In addition, the First Circuit upheld the use of evidence at trial that included incidents outside of the applicable 300-day statute of limitations. In other words, it upheld Tuli’s evidence to the jury of Day’s behavior over the course of her employment, and not simply behavior within the 300 days prior to her first formal claim. Under this “continuing violation” theory, if an act contributing to the claim occurs within the filing period, the entire time period of the alleged hostile environment can be considered by the jury for purposes of determining liability.

While this case is a warning to employers on the risks associated with hostile environment and retaliation claims, the warning is especially strong for hospital and health care systems that directly employ physicians. First, the income level of the individual involved typically translates into higher damages awards when juries find in their favor; and second, the risk created by the overlap between the credentialing process and hostile environment cannot be ignored, especially when an alleged harasser is directly involved in the credentialing process.
 

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The Americans with Disabilities Act prohibits employers from discriminating against individuals because of disability or perceived disability. However, in order to sufficiently support an ADA claim, an individual employee must be able to prove that he was qualified to perform his job in a satisfactory manner, with or without accommodation. Recently, the 7th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer, based upon the fact tat the plaintiff/employee, although disabled, was unable to show that he was meeting the legitimate job expectations of his employer and therefore was not a “qualified individual with a disability” under the ADA. Dickerson v. Bd. Of Trustees of Comm. College District 522, 7th Cir., No. 10-3381, September 16, 2011.

Robert Dickerson is employed as a part-time custodian for a community college in Illinois (“District 522”). Dickerson is mentally impaired, with a Full Scale IQ of 67 which, according to the court, falls into the range of “mild mental retardation.” In August 2007, Dickerson applied for a full-time position, but was not the successful candidate. In December of that year, Dickerson’s overall job performance was rated as “Unsatisfactory,” based on a number of issues, including the fact that he needed constant supervision or would wander off jobs. He often left his work area, putting additional burden on his co-workers. In January 2008, Dickerson filed a grievance with his union, and in February, he filed an EEOC charge alleging discrimination based upon his mental disability.

In the Spring of 2008, subsequent to the EEOC charge, Dickerson asked Larry Friederich, the District’s Vice President of Human Resources, what he should be doing in order to be promoted to a full-time position. Friederich responded along the lines of “you should not be suing your employer.”

Although Dickerson’s performance improved somewhat in 2008, the District found that he had made “insufficient progress” in correcting the issues raised in his 2007 evaluation, and terminated his employment. Dickerson grieved the termination, and an arbitrator reinstated him to his part-time position on the basis that the District had failed to follow the bargained-for progressive discipline policy. Dickerson then filed a lawsuit against District 522, claiming that District 522 discriminated against him by failing to promote him, evaluating him negatively, and firing him. The lower court granted summary judgment in favor of District 522. That decision was upheld by the Seventh Circuit on appeal.

An employee can support claims of discrimination and retaliation with direct evidence or indirect evidence. Direct evidence typically requires an admission by a decision-maker. In this case, Dickerson pointed to Friederich’s statement regarding the EEOC charge to allege that District 522 acted against him because of that charge. Indirect evidence requires the now-familiar “burden-shifting” analysis under McDonnell-Douglas, and requires an employer to set forth a legitimate business reason for its actions in order to rebut an employee’s prima facie case of discrimination.

In either event, the ADA protects only a “qualified individual” - someone with a disability who can perform the essential functions of the job with or without reasonable accommodation. In this case, the Seventh Circuit determined that Dickerson was unable to fulfill his job duties, based upon his history of discipline and performance criticism. It pointed out that Dickerson had received performance warnings as far back as 2005 for failing to complete work assignments and for leaving the job site without permission, that his 2007 performance evaluation was “Unsatisfactory,” and that his supervisor had frequently reprimanded him for work-related issues. While Dickerson disagreed with the negative evaluations, the court did not interpret that to mean that the evaluations were the result of unlawful discrimination.

While the rationale in this case is somewhat murky and seems to conflate the analysis of direct and indirect evidence, the holding rests squarely on the fact that District 522 was able to provide evidence and documentation of Dickerson’s history of performance problems, warnings, and counselings. The message for employers is obvious: regular, objective, and fully documented performance reviews are critical evidence in the defense of discrimination cases. Written job descriptions that spell out the duties and responsibilities of an employee also can assist in providing evidence of an employer’s legitimate expectations of an employee, and should be reviewed and updated regularly to accurately reflect that information.
 

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